Corrected Copy as of 9 October 2018

        U NITED S TATES N AVY –M ARINE C ORPS
            C OURT OF C RIMINAL A PPEALS
                          _________________________

                              No. 201300311
                          _________________________

                  UNITED STATES OF AMERICA
                                   Appellee
                                      v.
                             Pedro M. BESS
          Hospital Corpsman Second Class (E-5), U.S. Navy
                              Appellant
                        _________________________

 Appeal from the United States Navy-Marine Corps Trial Judiciary

    Military Judge: Commander Heather Partridge, JAGC, USN.
     For Appellant: Lieutenant Commander Jacob E. Meusch,
                            JAGC, USN.
    For Appellee: Captain Brian L. Farrell, U.S. Marine Corps;
            Captain Sean M. Monks, U.S. Marine Corps.
                      _________________________

                          Decided 4 October 2018
                          _________________________

               Before WOODARD, FULTON, and JONES,
                       Appellate Military Judges
                         _________________________

This opinion does not serve as binding precedent but may be cited as
persuasive authority under NMCCA Rule of Practice and Procedure
18.2.
                      _________________________

   JONES, Senior Judge:
   This case is before us for a second time. On 8 March 2013, the appellant
was convicted of two specifications of attempting to commit an indecent act
and four specifications of committing indecent acts, in violation of Articles 80




Hyperlink removed from page 13.
                       United States v. Bess, No. 201300311


and 120, (UCMJ), 10 U.S.C. §§ 880 and 920 (2007). 1 On 28 October 2014, we
affirmed the findings and sentence. 2 On 6 January 2016, the Court of Appeals
for the Armed Forces (CAAF) held that the military judge erred by denying
the appellant an opportunity to impeach evidence requested by the members
during deliberations. The CAAF set aside the findings and sentence and
remanded the case with authorization for a rehearing. United States v. Bess,

(C.A.A.F. 2016). The results of that rehearing are before us now.
    On remand, a general court-martial consisting of members with enlisted
representation convicted the appellant, contrary to his pleas, of two specifica-
tions of indecent acts in violation of Article 120, UCMJ. 3 The convening au-
thority (CA) approved the adjudged sentence of confinement for one year,
reduction to pay grade E-3, and a reprimand.
    The appellant raises ten assignments of error (AOEs), which we have re-
ordered: (1) the appellant’s convictions for indecent acts are legally and fac-
tually insufficient; (2) the government violated his due process rights in fail-
ing to notify him that he was being held on active duty beyond the end of his
active duty service obligation; (3) the military judge erred by denying his
request for the production of a witness; (4) the military judge abused her
discretion by denying production of a statistical breakdown of the racial
make-up of the population within the CA’s pool of potential members; (5) the
military judge violated the Equal Protection Clause of the Constitution by
failing to require a race-neutral reason for the CA’s exclusion of black mem-
bers from the appellant’s venire; (6) the CA engaged in unlawful command
influence (UCI) by excluding black members from the venire; (7) the military
judge abused her discretion by denying the appellant’s motion for a mistrial;
(8) the government illegally punished the appellant by taking his uniforms
after his first trial; (9) the panel violated his due process rights because it
consisted of less than six members, and their verdict did not require unanim-
ity; and (10) the guilty verdict should be set aside and dismissed under the
cumulative error doctrine.




   1 United States v. Bess, No. 201300311, 2014 CCA LEXIS 803 (N-M. Ct. Crim.
App. 28 Oct 2014) (unpub. op.).
   2   

appellant was acquitted of two other specifications involving similar crimes
on separate alleged victims: one specification of Article 80, UCMJ, 10 U.S.C. § 880
(2007), and one specification of Article 120, UCMJ, 10 U.S.C. § 920 (2007).




                                           2
                        United States v. Bess, No. 201300311


      We have considered AOEs nine and ten, and find them to be without mer-
it. 4 Having carefully considered the remaining AOEs, the record of trial, and
the parties’ submissions, we conclude the findings and sentence are correct in
law and fact and that no error materially prejudiced the appellant’s substan-
tial rights. Arts. 59(a) and 66(c), UCMJ, 10 U.S.C. §§ 859(a) and 866(c).
                                  I. BACKGROUND
    The appellant is an African-American x-ray technician who was assigned
to the Naval Air Station Oceana Branch Health Clinic (Oceana Clinic), Vir-
ginia Beach, Virginia. While in the performance of his duties at the clinic in
February 2011, the appellant told two female patients, PG, the dependent
daughter of an active duty field grade officer, and Aviation Support Equip-
ment Technician (Mechanical) Petty Officer 2nd Class (ASM2) AL, that they
had to be naked while he took their x-rays. Both women complied by remov-
ing their clothing, and the appellant purportedly took x-rays of them. 5 At
trial, Dr. B, a radiologist, testified that patients are never required to be
naked for any type of x-ray.
A. PG
   On 24 February 2011, PG’s doctor ordered x-rays from the Oceana Clinic
because PG was having back and neck pain after a car accident. When PG
went to the x-ray room, she met two people, an “older white gentleman” and




    4 United States v. Clifton, 

(C.M.A. 1992). It is settled law that a five-
member court-martial panel does not violate due process. See United States v. Wolff,

, 925 (N.M.C.M.R. 1978) (holding there was no due process deprivation for
a five-member panel in the military, in spite of the Supreme Court’s ruling in Ballew
v. Georgia, 

(1978) which required juries of at least six members in
Article III courts); Article 16, UCMJ; 10 U.S.C. § 816. It is also settled law that the
panel’s vote need not be unanimous. See Article 52(a)(2), UCMJ; 10 U.S.C. §
852(a)(2). See also United States v. Matias, 

, 361, (C.M.A. 1987).
    When an accumulation of errors deprives an appellant of a fair trial, Article
59(a), UCMJ, compels us to reverse it. United States v. Banks, 

, 171
(C.M.A. 1992). Here, given our findings on the other AOEs, the cumulative error
doctrine is inapposite.
    5We say “purportedly” because no x-rays of the women nude were found during
the investigation. At trial, a radiology technician testified that it is possible for a
technician to cause the x-ray machine to make sounds without actually capturing an
image. Also, x-rays not sent to doctors were automatically and systematically purged
from the Oceana Clinic’s computers.




                                             3
                           United States v. Bess, No. 201300311


the appellant. 6 The older gentleman and the appellant conducted chest x-rays
of PG while she was wearing jeans and t-shirt, but with her bra removed. 7
    After these initial x-rays, the older gentleman left. The appellant then
told PG that he needed to take more x-rays because she was in a head-on
collision and he instructed her to get completely undressed. The appellant left
the room. PG did as she was directed and lay on the table completely naked.
The appellant returned and appeared to take x-rays of PG in several posi-
tions while she was completely naked. These positions included having PG
lay on her stomach and stick her buttocks in the air and get into a “frog-like
position.” 8 The positions completely exposed PG’s naked vaginal area to the
appellant. During this time, PG was never given a gown or other clothing to
wear, and had only a small cloth that she tried unsuccessfully to use to cover
her breasts and genitalia. Finally, PG asked if they had to continue taking
more x-rays, and the appellant said he would “check with [her] doctor.” 9 The
appellant left the room and returned a few moments later to tell PG she could
leave.
B. ASM2 AL
   ASM2 AL’s flight surgeon ordered x-rays for her back. On the morning of
25 February 2011, ASM2 AL went to the x-ray department at the Oceana
Clinic and a female technician took x-rays of her back while she was lying
down. ASM2 AL remained fully clothed during this procedure. Later that
evening, she was instructed to return to the Clinic’s x-ray department be-
cause her doctor needed x-rays of her back “taken standing up.” 10
    When ASM2 AL went back to the x-ray room with the appellant, he in-
structed her to remove her clothing and wear nothing except a gown. After
she had changed, the appellant came back into the room and told her that
“the doctor had requested that [she] wear nothing and that [she] be complete-



   6   Record at 504-05.
   7 At trial, PG was cross-examined on her October 2011 statement to NCIS, where
she stated that the older gentleman was present during the original x-rays and that
she was topless at that time. 

On re-direct examination, PG reiterated
that—in spite of what the NCIS agent had written—she was naked only during the
second set of x-rays when she and the appellant were alone in the room. 

33.
   8   

   9   

at 341-42; Prosecution Exhibit (PE) 20.




                                              4
                         United States v. Bess, No. 201300311


ly nude to take the x-rays.” 11 The appellant left the room again and she took
off the gown as directed, leaving her completely naked. When the appellant
returned, he had ASM2 AL sign a consent form which appeared to be “a
statement from [her doctor] saying that [she] had to be nude for the x-rays so
that they would show up more clear [sic].” 12 The appellant then took a series
of x-rays while she was standing and completely naked. Throughout the
entire process, ASM2 AL’s breasts, buttocks, and vaginal area were exposed,
and the appellant encouraged her not to cover her pelvic area with her hands.
   Additional facts necessary to resolution of the AOEs are included below.
                                 II. DISCUSSION
A. Legal and factual sufficiency
    The appellant argues that the evidence is legally and factually insuffi-
cient to find him guilty of both specifications of indecent conduct. We disa-
gree.
    We review questions of legal and factual sufficiency de novo. Art 66(c),
UCMJ; United States v. Washington, 

, 399 (C.A.A.F. 2002). The
test for factual sufficiency is whether “after weighing the evidence in the
record of trial and making allowances for not having personally observed the
witnesses, [this court is] convinced of appellant’s guilt beyond a reasonable
doubt.” United States v. Rosario, 

, 117 (C.A.A.F. 2017) (citation,
internal quotation marks, and emphasis omitted). In conducting this unique
appellate function, we take “a fresh, impartial look at the evidence,” applying
“neither a presumption of innocence nor a presumption of guilt” to “make
[our] own independent determination as to whether the evidence constitutes
proof of each required element beyond a reasonable doubt.” 

. Proof beyond a reasonable doubt does not mean, however, that
the evidence must be free from conflict. United States v. Goode, 

,
841 (N-M. Ct. Crim. App. 2001). “The test for legal sufficiency is whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Robinson, 

, 297-98,
(C.A.A.F. 2018) (quoting 

).
   The appellant disputes only his identification as the perpetrator. He avers
that “the government failed to prove beyond a reasonable doubt that [he] was




   11   Record at 343.
   12   

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                          United States v. Bess, No. 201300311


the performing [x-ray] technician.” 13 Therefore, we will focus on the govern-
ment’s burden to prove beyond a reasonable doubt that it was the appellant
that committed the indecent acts of unlawfully viewing the nude bodies of PG
and ASM2 AL during their x-ray examinations. 14
    Of the five x-ray technicians at the Oceana Clinic, only two would appear
to be black. One was the appellant; the other was a native of Haiti, and spoke
with a “really thick” accent. 15 In addition to his accent, the other technician
was readily distinguishable from the appellant—he was tall and thin, and
had a dark-complexion. The appellant was comparatively stockier and had a
lighter complexion. The other technician was a third class petty officer. The
victims testified that their technician was a second class petty officer, like the
appellant.
    Both victims had ample opportunity to both observe the appellant’s physi-
cal description and clearly hear his voice while they were alone in the x-ray
room with him. Both spent several minutes talking to the appellant while he
pretended to provide them with medical care. Neither victim testified that
the x-ray technician that made them remove all of their clothes had an ac-
cent. At trial, PG and ASM2 AL positively identified the appellant as the x-
ray technician who took their x-rays while they were nude.


   13   

Appellant’s Brief of 1 Dec 2017 at 59.
   14   The elements for the indecent acts alleged in Specification 1 of Charge II are:
    (1) The appellant engaged in wrongful conduct by wrongfully and without neces-
sity having PG remove all of her clothing in order to receive an x-ray examination
and having her lay on an examination table with her legs splayed, knees bent, and
feet together while she was nude and on her stomach with her back arched and hips
propped up while she was nude and thereby observing her genitalia, buttocks, and
nipples; and
   (2) The conduct was indecent.
   The elements for the indecent acts alleged in Specification 2 of Charge II are:
    (1) The appellant engaged in wrongful conduct by wrongfully and without neces-
sity having ASM2 AL remove all of her clothing in order to receive an x-ray examina-
tion and thereby observing her nude body, to include the genitalia, buttocks, and
nipples; and
   (2) The conduct was indecent.
10 U.S.C. § 920(k) (2007); MANUAL FOR COURTS-MARTIAL, UNITED STATES (MCM)
(2007 ed.), Part IV, ¶45b.(11); Record at 803-04; Charge Sheet.
   15  Record at 409. We use the term “black” in the opinion because we are not cer-
tain the Haitian x-ray technician identifies as African-American.




                                               6
                         United States v. Bess, No. 201300311


    The government submitted various records to corroborate that it was the
appellant who took x-rays of PG and ASM2 AL while they were nude. The
appellant avers that these records were unreliable. First, the government
submitted documents from a medical care records system called the Compo-
site Healthcare System (CHCS), which is used to track medical services for
patients, including x-rays. Per the CHCS, PG received her x-rays between
1709 and 1751 on 24 February 2011 from the appellant. 16 Also per the CHCS,
ASM2 AL received her x-rays between 1645 and 1710, and then again at 1801
on 25 February 2011 from the appellant. 17 The government also presented
the appellant’s unit’s muster reports for the two days in question. They re-
vealed that only one x-ray technician was on duty for both of these late shifts
at the Oceana Clinic—the appellant.
    The corroborating evidence from the CHCS presented by the government,
however, is not infallible. Any x-ray technician had the ability to manipulate
the CHCS report by simply putting a different technician’s name into the
system before taking an x-ray. Also, it was not uncommon for a technician to
take x-rays of a patient while a different technician was logged in to the
CHCS system. In this case, however, both PG’s and ASM2 AL’s x-rays were
taken after normal working hours when the appellant was the only x-ray
technician on duty, and therefore not sharing the x-ray machine with other
technicians. We also accept that the unit’s muster reports were not fail-safe
evidence; after a muster report was taken, technicians still rotated between
the Oceana Clinic and another nearby clinic based on work assignments and
personal necessities. But the CHCS records, in conjunction with the appel-
lant’s unit muster reports, corroborate the victims’ unwavering identification
of the appellant as the x-ray technician who took their x-rays when they were
nude.
   We are convinced that the appellant was the x-ray technician who took
PG’s and ASM2 AL’s x-rays while they were nude. The evidence of his guilt is
overwhelming. The victims’ allegations and their in-court identifications are
supported by other testimonial and documentary evidence establishing that
the appellant was their x-ray technician. 18 We do not believe the victims
confused the appellant for any other x-ray technician working at the Oceana


   16   PE 12 at 4; Record at 439.
   17   PE 14 at 2; Record at 430-31.
   18 We also reject the appellant’s contention that because his personal marker—a
skull and crossbones with his initials—was not visible on the victims’ x-rays he was
not the technician who conducted the x-rays. We are not surprised that the appellant
would seek to avoid identifying himself while committing crimes.




                                           7
                         United States v. Bess, No. 201300311


Clinic. Each victim’s testimony at trial supported the charges resulting in the
convictions. We find unpersuasive the appellant’s argument that his identifi-
cation was merely the result of government suggestibility and that the vic-
tims confused him with the other black technician. After carefully reviewing
the record of trial and considering the evidence in the light most favorable to
the prosecution, we are convinced that a reasonable fact-finder could have
found all the essential elements beyond a reasonable doubt. Furthermore,
after weighing all the evidence in the record of trial and having made allow-
ances for not having personally observed the witnesses, we are convinced
beyond a reasonable doubt of the appellant’s guilt.
B. Failure to notify the appellant that he was on legal hold
   The appellant alleges his due process rights were violated because the
government failed to provide him notice that it was retaining him on active
duty past his End of Active Obligated Service (EAOS) date.
    After the appellant served his confinement for his first court-martial, his
command failed to administratively change the expiration of his EAOS from
20 October 2016 to 20 April 2017. This change should have been made be-
cause days spent in confinement do not count towards fulfilling a service-
member’s enlistment. 19 On 11 April 2017, the appellant’s command realized
the error and issued him a counseling entry documenting that he had been on
legal hold from 20 October 2016 to 11 April 2017. 20 The appellant argues this
lack of notice of his legal hold violated his right to due process, and that this
violation caused the court-martial to lose jurisdiction over him. We disagree.
    As the appellant raises this due process concern for the first time on ap-
peal, we apply the plain error standard. See United States v. Lewis, 

, 383 (C.A.A.F. 2011) (applying the plain error standard to a due process
claim first raised on appeal). Under the plain error standard, the appellant
must show that: “(1) an error was committed; (2) the error was plain, or clear,
or obvious; and (3) the error resulted in material prejudice to substantial
rights.” 

States v. Maynard, 

, 244 (C.A.A.F.
2008)).
    Here, the appellant fails to show that the government’s failure to provide
this notification plainly or obviously violated his right to due process. The
appellant cites no authority—and we find none—supporting the proposition
that the government’s failure to notify him that he was being retained on
active duty amounted to a violation of the Fifth Amendment guarantee of due

   19   Appellant’s Motion to Attach of 20 Nov 2017, App. 2 at 2.
   20   

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                          United States v. Bess, No. 201300311


process. Even if it did, the record does not reveal that the appellant was
actually prejudiced. The record contains no indication that the appellant did
not know that he remained on active duty. He was not discharged after his
first court-martial. The appellant’s brief makes plain that the appellant wore
a uniform and returned to active service after having been confined.
    The appellant erroneously links this perceived failure of due process with
jurisdiction. The appellant incorrectly concludes that “as a result of the gov-
ernment’s failure to provide such notice, government officials were able to
retain personal jurisdiction” over the appellant. 21 But notification is not the
source of, and does not affect, jurisdiction over a service member. Rather, the
appellant was subject to the court-martial’s jurisdiction because he had never
been discharged from active duty. And the record does not contain any reason
to find that the appellant would have been discharged had he brought the
government’s error to its attention. Doubtless the government would have
simply notified him that he was being retained for a second trial.
  We find that the government did not violate the appellant’s Fifth Amend-
ment right to due process, and that no administrative error severed court-
martial jurisdiction over the appellant.
C. Military judge’s denial of motion to produce a witness
    The appellant avers that the military judge abused her discretion in deny-
ing the appellant’s pre-trial motion to compel production of Investigator S as
a witness at trial. We disagree.
    Investigator S was an investigator for the Naval Criminal Investigative
Service assigned to the appellant’s case. During his investigation, Investiga-
tor S used the CHCS to identify and then cold-call numerous females who
might have been potential victims of the appellant. In one of these calls, a
female patient—who was never a victim in the appellant’s case—indicated
that her x-ray technician might have been Caucasian. This was significant
because the CHCS indicated the appellant had been signed in as her x-ray
technician during the taking of her x-rays. The agent noted that the patient
stated her technician was “Male (Caucasian)–Not too sure.” 22 The defense
argued that Investigator S could testify about this phone call with the un-
known female. They argued this would show the CHCS was too unreliable to
identify which x-ray technician took certain x-rays.




   21   Appellant’s Brief at 35.
   22   Appellate Exhibit (AE) VI at 6.




                                           9
                        United States v. Bess, No. 201300311


    The military judge denied the motion, ruling that the testimony of Inves-
tigator S was not relevant or necessary. She stated that she could not “see
how it is any more likely that this is a flaw in the CHCS than it is [the female
patient’s] memory of describing the x-ray technician.” 23 The military judge
found that Investigator S was cumulative with the defense’s own expert
consultant on the CHCS. She also found that the defense could effectively
cross-examine other government witnesses with direct knowledge of the
CHCS—witnesses who would readily admit that the CHCS showed only
which x-ray technician was signed in at any given time and not which techni-
cian took certain x-rays.
    We review witness production rulings for an abuse of discretion. United
States v. McElhaney, 

, 126 (C.A.A.F. 2000). “The military judge’s
decision should only be reversed if, ‘on the whole,’ denial of the defense wit-
ness was improper.” United States v. Ruth, 

, 3 (C.A.A.F. 1997) (cita-
tions omitted) (alteration in original). We will not reverse a military judge’s
ruling on a witness production motion “unless [we] have a definite and firm
conviction that the [military judge] committed a clear error of judgment in
the conclusion [she] reached upon a weighing of the relevant factors.” 

internal quotations omitted).
    The test for whether a witness should be produced is whether that wit-
ness is relevant and necessary. R.C.M. 703(b)(1). To determine if the testimo-
ny would be relevant, the trial judge must consider whether the testimony
would have any tendency to make a fact of consequence more or less proba-
ble, and that its probative value is not outweighed by the danger of unfair
prejudice, confusing the issues, misleading the members, undue delay, wast-
ing time, or needlessly presenting cumulative evidence. MILITARY RULE OF
EVIDENCE (MIL. R. EVID.) 401 and 403, MANUAL FOR COURTS-MARTIAL
(MCM), UNITED STATES (2016 ed.).
    To determine whether a witness is necessary, we consider such factors as
the issues involved in the case and the importance of the requested witness
as to those issues; whether the witness is desired on the merits or the sen-
tencing portion of the trial; whether the witness’s testimony would be merely
cumulative; and the availability of alternatives to the personal appearance of
the witness, such as deposition, interrogatories or previous testimony. 

(quoting United States v. Tangpuz, 

, 429 (C.M.A.
1978)).




   23   Record at 37.




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                         United States v. Bess, No. 201300311


   We agree with the military judge’s finding that Investigator S’s testimony
would have had very minimal, if any, relevance. The unidentified female
patient’s memory was inconclusive, and Investigator S could only speculate
about what her testimony actually meant regarding the reliability of the
CHCS. We concur with the military judge’s finding that a faulty memory of
one patient would shed little, if any, light on the trustworthiness of the
CHCS.
    We also conclude that the military judge did not err in finding the evi-
dence was not necessary. Although she did not spell out all of the Ruth fac-
tors for determining when a witness is necessary, the military judge did
address two of the factors in her ruling: She addressed the first Ruth factor—
the issues involved in the case and the importance of the requested witness
as to those issues—when she found Investigator S’s testimony unimportant
regarding the reliability of the CHCS. She also addressed the third Ruth
factor—whether the witness’s testimony would be merely cumulative—in
finding that there were already several witnesses who were going to testify
about the reliability of the CHCS. In fact, the defense conceded that the
government was going to call at least three x-ray technicians who would
testify that the CHCS did not always portray who a patient’s actual x-ray
technician was because the technicians could “select any name from the drop-
down menu” when they took the x-rays. 24
    As the military judge anticipated, the issue of the CHCS’s reliability was
addressed by several witnesses at trial. No fewer than three government
witnesses and three defense witnesses—including the appellant himself—
testified regarding the reliability of using the CHCS to positively identify
which x-ray technician took a certain x-ray. 25 Production of Investigator S’s
testimony was not necessary. Accordingly, we conclude that the military
judge did not abuse her discretion in denying the production of Investigator
S.
D. Denial of discovery
   The appellant asserts that the military judge abused her discretion in
denying production of a statistical breakdown of the racial make-up of the
population of the CA’s command.




   24   

   25   

540-647; 675-97; 737-45; 746-78.




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                        United States v. Bess, No. 201300311


   1. Background
    After general voir dire, but before the first member was brought in for in-
dividual voir dire, the trial defense counsel (TDC) stated the defense team
had noticed that the “the panel [was] all white,” their client was African-
American, and they “would prefer African-American representation on the
panel.” 26 The TDC indicated they were making “a combination of an Article
25 [UCMJ,] challenge . . . almost like a preventative Batson challenge. . . . It
is almost as though a command is preventing that race from representation
on the panel so that they can avoid a Batson challenge.” 27
   The military judge responded:
             [A]bsent any evidence of anything inappropriate being done
         by the convening authority in assembling the panel, you know,
         all I can state for the record is that, if it wasn’t for frankly some
         of—the reading that I did about the prior proceeding, I would
         not personally have known the race of your client, and I cer-
         tainly would not know necessarily by observing him, nor do I
         feel confident that I know the race of several of the members of
         the panel. I suspect that we have some minority participation
         on the panel . . . . 28
    In response, the TDC stated, “I may have misspoke [sic] and said that
[the panel] were all Caucasian, and that might not be true. I am fairly confi-
dent that there is no African-American on the panel of 10, which statistically
speaking, you would think that there would be at least one.” 29
    The TDC then requested to expand their initial discovery request—which
had been for the documents accompanying the selection of members under
Article 25, UCMJ—to include “a statistical breakdown of the population as
far as race with respect to the convening authority’s command.” 30 The mili-
tary judge denied the discovery request. First, she found that the defense had
been in possession of the member’s questionnaires for a week before trial and
should have raised the issue earlier. Second, she found that a statistical
breakdown of the CA’s command based on race was not feasible, and was
irrelevant absent any evidence of impropriety.


   26   

   27   

   28   

at 143.
   30   

                                            12
                      United States v. Bess, No. 201300311


    Finally, the TDC argued that this was the second members panel in a row
in which he was representing an African-American client and the members
appeared to be “an all-white panel.” 31 The military judge noted the TDC’s
objection for the record and then directed that the first member be called in
for individual voir dire.
   2. Denial of request for discovery
    We review a military judge’s ruling on a request for production of evi-
dence for an abuse of discretion. United States v. Rodriguez, 

, 246
(C.A.A.F. 2004). The military judge abuses her discretion when her findings
of fact are clearly erroneous or her ruling is influenced by an erroneous view
of the law. United States v. Freeman, 

, 453 (C.A.A.F. 2008). Here,
although we find the military judge erred in declaring the TDC’s objection to
the panel untimely, she did not abuse her discretion by denying the discovery
request.
    With regard to timeliness, the military judge misapprehended the content
of the members’ questionnaires. Only one of the ten member’s questionnaires
had a question asking the member to identify her race. 32 The appellant would
have had no way of knowing what race the members appeared to be until
they actually arrived at the trial. The military judge’s finding, therefore, that
the defense could have used the questionnaires to bring the motion sooner
was incorrect. The defense brought the issue to the military judge’s attention
when it came to their attention. Our superior court has ruled that an objec-
tion that the CA selected members for reasons other than those listed in
Article 25, UCMJ—such as excluding members based on race—is always
timely and never waived. United States v. Riesbeck,77 M.J. 154, 160 (C.A.A.F.
2018). 33
    Although the military judge erred with regard to the timeliness of the mo-
tion, we find that she did not abuse her discretion in denying the motion.
First, the defense request for “a statistical breakdown of the population as far
as race with respect to the convening authority’s command” is not relevant.
The record reveals that the CA was able to detail members from outside Navy
Region Mid-Atlantic, and even from commands not subordinate to his com-


   31   

   32  AE XXVVII at 76. The member with the racial identifier question self-
identified as Caucasian.
   33 The CAAF equated this attack on member selection to UCI. “We also noted
that improper member selection can constitute unlawful command influence, which
cannot be waived.” 

. See Section F, infra.




                                         13
                     United States v. Bess, No. 201300311


mand. The record also reveals that no members detailed to the appellant’s
court-martial listed Navy Region Mid-Atlantic—the CA’s command—as their
current command. Knowing the racial makeup of the CA’s command, there-
fore, would not have been useful to the court-martial.
    We are unable to re-construe the request to be more relevant. The record
does not reveal what additional commands made up the CA’s pool of available
members. We cannot know—and the appellant has not demonstrated—what
a request for more relevant information might have looked like. What com-
mands’ demographic information should be used? Over what period of time?
In terms of eligibility under Article 25, UCMJ, what would be the appropriate
groups of people to consider? The appellant’s request at trial was for irrele-
vant information, and the military judge did not abuse her discretion by
denying it.
    On appeal, the appellant asks us to re-tool the request and order a DuBay
hearing to “require the government to produce the racial and statistical
makeup of the pool of members for the CA and ‘articulate[ ] a neutral expla-
nation relative to this particular case, giving a clear and reasonably specific
explanation of legitimate reasons’ for excluding black members from HM2
Bess’ venire.” 34 We find, however, that the record is sufficient for us to de-
termine that the military judge did not abuse her discretion by denying the
request as it was made at trial. The appellant presented no evidence that the
CA used anything other than the Article 25, UCMJ, criteria for selecting
members, or that he even knew the race of all but one of the members he
selected. The appellant’s mid-voir dire request was for irrelevant information,
and the military judge rightly denied it at the time. We decline the appel-
lant’s invitation to litigate new requests post-trial. This assignment of error
is without merit.
E. No African-Americans on the panel
    The appellant urges us to extend Batson v. Kentucky, 

(1986)
and hold that the military judge erred by not requiring the CA to give a race-
neutral reason for not having any African-Americans on the panel. We de-
cline to do so.
   Batson, as applied to the military in United States v. Santiago-Davila, 

(C.M.A. 1988), allows an accused to require a prosecutor to give a
race-neutral reason for exercising a peremptory challenge on a minority
member. The appellant argues that the CA circumvented Batson by not in-


   34 Appellant’s Brief at 47 (quoting United States v. Moore, 

, 369
(C.M.A. 1989) (alteration in original).




                                        14
                     United States v. Bess, No. 201300311


cluding any African-Americans on the panel. The appellant argues that the
absence of African-Americans on the panel is prima facie evidence that the
CA systematically excluded them, and that, under Batson, the burden shifted
to the government—presumably the CA—to give a race-neutral reason for not
including African-Americans.
   There is no precedent for this application of Batson in courts-martial, and
we decline to create it here. Additionally, we are bound by precedent that
establishes that, absent further evidence of some intentional exclusion of a
particular group by the CA, the absence of African-Americans on the panel
does not constitute prima facie evidence of systematic exclusion. See United
States v. Loving, 

, 285 (C.A.A.F. 1994). This assignment of error is
without merit.
F. Unlawful Command Influence
   The appellant claims that the commander exerted UCI by excluding Afri-
can-American members from the panel. We disagree.
    To prove UCI on appeal the appellant must show (1) facts, that if true,
constitute UCI, (2) the prior proceedings were unfair, and (3) the UCI “was
the cause of the unfairness.” United States v. Biagase, 

, 150
(C.A.A.F. 1999) (citing United States v. Stombaugh, 

, 213 (C.M.A.
1994)). The appellant must show facts that, if true, allege the members were
selected on an impermissible basis to affect the result of the trial. 

. Proximate causation between the alleged UCI and court mar-
tial outcome must be proven as well. 

(citing United
States v. Reynolds, 

, 202 (C.M.A. 1994)).
    Allegations of UCI are reviewed de novo by this court. United States v.
Sayler, 

, 423 (C.A.A.F. 2013) (citing United States v. Harvey, 

, 19 (C.A.A.F. 2006)). The appellant alleges that the CA used race to
select an all-white panel in order to engage in court stacking, a form of UCI.

. “The initial burden of showing potential [UCI] is
low, but is more than mere allegation or speculation.” 

States v. Stoneman, 

, 41 (C.A.A.F. 1999). If the defense presents
some evidence of UCI, the burden shifts to the government to show either
that there was no UCI, or that any UCI did not taint the proceedings. Stone-

.
    We find that the appellant has not met his initial burden. With the excep-
tion of the one member’s questionnaire that had a racial or ethnicity identify-
ing question and response, there is no evidence that the CA knew the race of
any of the other nine members detailed to the court-martial. Again, we ob-
serve that none of the members listed Navy Region Mid-Atlantic as their
parent command on their member questionnaires. As all of the members


                                        15
                       United States v. Bess, No. 201300311


denied personally knowing the CA during voir dire, we have no reason to
suspect that the CA personally knew them and would therefore have known
their race. This court cannot even be sure of the members’ race as the record
is absent of any questions posed during voir dire to the members by either
counsel or the military judge regarding the members’ racial or ethnic back-
ground.
   We note that the appellant’s counsel was in possession of the matters the
CA used to select members, and that he failed to introduce these matters as
evidence. Also, the appellant did not call the CA as a witness to ask him
about how he selected members.
    We have considered the affidavit provided by trial defense counsel’s exec-
utive officer. In that affidavit, the executive officer notes that he represented
an African-American officer at court-martial seven months after the appel-
lant’s trial. Before that officer’s trial, the executive officer sent a letter to the
CA asking for minority representation at the officer’s trial. The CA complied
with that request. In the affidavit the executive officer goes on to state that
he is aware of three other cases in which African-Americans were tried by all-
white panels convened by the CA. We find that this anecdotal observation by
the executive officer of a defense command, which cuts both in favor of and
against the appellant’s allegation of CA bias, does not shift the burden to the
government to disprove UCI.
    In addition to considering the case for actual UCI, we have considered ap-
parent UCI, asking whether “an objective, disinterested observer, fully in-
formed of all the facts and circumstances, would harbor a significant doubt
about the fairness of the proceeding.” 

(citing 

). We find that there are insufficient facts on the record that
would lead a reasonable person to harbor significant doubt about the fairness
of the proceeding. In possession of the CA’s members’ selection material, the
appellant presented no evidence that the CA selected members by using any
criteria other than those found in Article 25, UCMJ. This assignment of error
is without merit.
G. Failure to grant a mistrial
    The appellant avers that the military judge abused her discretion in fail-
ing to grant a mistrial. We disagree.
      Before the beginning of the trial, the TDC reminded the military judge
that the parties had agreed “to reference any testimony from the first trial
. . . as ‘prior testimony at a prior hearing,’ rather than . . . that it was an
actual contested trial.” The military judge agreed:
          As you stated, we—our goal is to preclude any indication to
       the members that there was a previous court-martial. And, as


                                           16
                        United States v. Bess, No. 201300311


         indicated, counsel should refer to any prior testimony as some-
         thing of the nature of, “At a prior hearing,” or, “During prior
         testimony,” something of that nature, and not refer to a court-
         martial. 35
    During trial, the government called Dr. B, an expert in radiology. On re-
direct examination, the prosecutor asked Dr. B if he had reviewed certain x-
rays on the high resolution monitors at his office before trial. Dr. B respond-
ed, “Not for this particular trial. I did for the original trial.” 36 The military
judge quickly excused the members and discussed issuing a curative instruc-
tion with the parties. The defense refused to participate in the drafting of the
curative instruction and asked for a mistrial. The military judge denied the
mistrial and provided the members with the following curative instruction:
            Members, you are to completely disregard Dr. [B’s] state-
         ment concerning a prior proceeding. There are many ways and
         reasons why a prior proceeding that may have occurred
         could’ve terminated. And you may make no inference concern-
         ing the guilt or innocence at [sic] the accused. You are to de-
         termine the accused’s guilt or innocence based solely on the
         evidence presented to you in court. Is there any member who
         cannot follow this matter? 37
    All of the members indicated that they could follow the instruction. The
military judge gave the appellant the overnight recess to draft a written
motion for mistrial. The defense filed the written motion the next morning,
which the military judge denied. In her ruling, the military judge pointed out
that Dr. B mentioned only that there was a prior trial—not a prior convic-
tion—and that the defense failed to provide any source of law for the proposi-
tion that such a statement was worthy of a mistrial. The military judge ruled
that a curative instruction was the appropriate remedy.
             [T]here were multiple and various inferences the members
         could draw if permitted to make inferences regarding the mere
         mention of a previous trial. That is exactly why I deemed a cu-
         rative instruction to be the appropriate remedial action to stop
         as quickly as possible the members from making any infer-




   35   Record at 80.
   36   

   37   

                                         17
                       United States v. Bess, No. 201300311


         ences. I do not agree with the defense that the only acceptable
         curative instruction would require lying to the members. 38
    “We will not reverse a military judge’s determination on a mistrial absent
clear evidence of an abuse of discretion.” United States v. Ashby, 

,
122 (C.A.A.F. 2009) (citing United States v. Rushatz, 

, 456 (C.M.A.
1990)). A military judge “may, as a matter of discretion, declare a mistrial
when such action is manifestly necessary in the interest of justice because of
circumstances arising during the proceedings which cast substantial doubt
upon the fairness of the proceedings.” R.C.M. 915(a). But “a mistrial is an
unusual and disfavored remedy. It should be applied only as a last resort to
protect the guarantee for a fair trial.” United States v. Diaz, 

, 90
(C.A.A.F. 2003). “A curative instruction is the preferred remedy, and the
granting of a mistrial is an extreme remedy which should only be done when
‘inadmissible matters so prejudicial that a curative instruction would be
inadequate are brought to the attention of the members.’” 

(quoting
R.C.M. 915(a), Discussion).
    Here, we find the military judge did not abuse her discretion by denying
the request for a mistrial. We do not believe the mere mention of a previous
trial by Dr. B casts substantial doubt upon the fairness of the proceedings.
See R.C.M. 915(a). The doctor’s comment was not so prejudicial that a cura-
tive instruction did not cure it. In fact, the curative instruction alleviated any
possible prejudice that might have arisen. We presume “absent contrary
indications, that the panel followed the military judge’s instructions.” United
States v. Sewell, 

, 19 (C.A.A.F. 2017).
H. The government taking the appellant’s uniforms
   The appellant claims he was unlawfully punished under Article 13,
UCMJ, when the government kept his uniforms after his first conviction was
overturned and he was released from the brig. We disagree.
    Before findings, the appellant made an oral Article 13, UCMJ, motion al-
leging illegal pretrial punishment. The appellant testified that he was re-
quired to turn in his uniforms when he entered confinement after his first
court-martial. He was then ordered back to active duty when his convictions
were set aside. The appellant testified that he then bought $400.00 worth of
new uniforms because none of the command’s spare uniforms fit him. The
military judge denied the motion because she found no punitive intent by the
command to punish the appellant, and “multiple legitimate[,] non-punitive



   38   

                                         18
                          United States v. Bess, No. 201300311


government interests” for taking uniforms from servicemembers receiving a
dishonorable discharge. 39
    Article 13, UCMJ, prohibits pretrial punishment: “[n]o person, while be-
ing held for trial, may be subjected to punishment or penalty other than
arrest or confinement upon the charges pending against him[.]” The CAAF
has determined that for the appellant to receive relief, he must show that the
government intended to punish him. “[T]he question of whether particular
conditions amount to punishment before trial is a matter of intent, which is
determined by examining the purposes served by the restriction or condition,
and whether such purposes are reasonably related to a legitimate govern-
mental objective.” Howell v. United States, 

, 393 (C.A.A.F. 2016)
(quoting United States v. Palmiter, 

(C.M.A. 1985)) (alteration in
original) (internal quotation marks omitted).
    “The burden is on [the] appellant to establish entitlement to additional
sentence credit because of a violation of Article 13[, UCMJ].” United States v.
Mosby, 

, 310 (C.A.A.F. 2002) (citing R.C.M. 905(c)(2)). Whether an
appellant is entitled to relief for a violation of Article 13, UCMJ, is a mixed
question of law and fact. 

States v. Smith, 

, 170
(C.A.A.F. 2000) and United States v. McCarthy, 

, 165 (C.A.A.F.
1997)) (additional citation omitted). “We will not overturn a military judge’s
findings of fact, including a finding of no intent to punish, unless they are
clearly erroneous. We will review de novo the ultimate question whether
[this] appellant is entitled to credit for a violation of Article 13[, UCMJ].” 

53 M.J. at 170).
    Here, the appellant presented no evidence that the government acted
with a punitive intent when it appropriated his uniforms after his first con-
viction. Accordingly, the military judge found no intent to punish: “[T]here
does not appear to be any punitive intent in the lack of retention of [the ap-
pellant’s] uniforms while he was in the brig, or those items being returned to
him.”
   The military judge also found legitimate, nonpunitive purposes for the
government’s policy of confiscating uniforms of servicemembers who had
received punitive discharges. Those reasons included: (1) preventing service-
members who had received punitive discharges from wearing their uniforms
out in town; (2) complying with the Naval Military Personnel Manual’s re-
quirement for persons with punitive discharges to surrender their uniforms; 40


   39   

   40   MILPERSMAN, Art. 1910-228, p.1 (CH-11, 1 Jun 2005).




                                          19
                         United States v. Bess, No. 201300311


and (3) compliance with 10 U.S.C. § 771a’s requirement that when an enlist-
ed servicemember is discharged dishonorably his issued clothing must be
retained by the military. 41
   The military judge’s findings of fact are supported by the record and are
not clearly erroneous. Her conclusions of law are correct. Accordingly, we find
that the appellant is not entitled to relief under Article 13, UCMJ.
                                III. CONCLUSION
   The findings and sentence as approved by the CA are affirmed.
   Chief Judge WOODARD and Senior Judge FULTON concur.


                                      FOR THE COURT




                                      RODGER A. DREW, JR.
                                      Clerk of Court




   41   Record at 1089-90.




                                         20